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Filed 10/26/16 Marina Coast Water Dist. v. Calif. Coastal Comm.

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


SIXTH APPELLATE DISTRICT

MARINA COAST WATER DISTRICT,


Plaintiff and Appellant,

H042742
(Santa Cruz County
Super. Ct. No. CV180839)

v.
CALIFORNIA COASTAL COMMISSION,
Defendant and Respondent;
CALIFORNIA-AMERICAN WATER
COMPANY,
Real Party in Interest and Respondent.
I. INTRODUCTION
Real party in interest California-American Water Company (Cal-Am) wanted to
construct and operate a temporary test slant well on private beach property owned by
CEMEX, a company that used the site for sand mining. Cal-Am was required to obtain
coastal development permits for the project from the California Coastal Commission
(Coastal Commission)1 and the City of Marina. In its permit application to the City of
Marina, Cal-Am stated that the purpose of the temporary test slant well project was to

The coastal development permit issued by the Coastal Commission is not at


issue in this appeal.

gather technical data regarding the feasibility of a subsurface water intake system for a
potential future desalination project.
The Marina City Council denied Cal-Ams application for a coastal development
permit and Cal-Am filed an appeal to respondent Coastal Commission. After preparing a
staff report addressing the environmental impacts of the test slant well project and
holding a public hearing, the Coastal Commission issued the coastal development permit
sought by Cal-Am.
Appellant Marina Coast Water District (Marina Coast) is a municipal water
district that provides water service to 30,000 residential and commercial customers in the
City of Marina and the former Ford Ord Army Base. According to Marina Coast, the test
slant well will pump groundwater from the Salinas Valley Groundwater Basin from
which Marina Coast also pumps groundwater. Marina Coast filed a petition for writ of
mandate2 challenging the Coastal Commissions decision to issue the coastal
development permit to Cal-Am, which the trial court denied in its August 24, 2015
judgment.
On appeal, Marina Coast contends that the trial court erred in denying the petition
for writ of mandate and the Coastal Commissions approval of Cal-Ams coastal
development permit should be reversed because the Coastal Commission lacked appellate
jurisdiction. Alternatively, Marina Coast contends that the Coastal Commissions
approval violated several provisions of the California Environmental Quality Act

Public Resources Code section 30801 provides: Any aggrieved person shall
have a right to judicial review of any decision or action of the commission by filing a
petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil
Procedure, within 60 days after the decision or action has become final.
All further statutory references are to the Public Resources Code unless otherwise
indicated.
2

(CEQA) (Public Resources Code 21000 et seq.) For the reasons stated below, we find
no merit in Marina Coasts contentions and we will affirm the judgment.3
II. OVERVIEW: COASTAL DEVELOPMENT PERMITS
We begin with the statutory scheme for land use in the coastal zone of California,
including coastal development permits, as outlined by the California Supreme Court in
Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th
783, 793-794 (Pacific Palisades). The Coastal Act was enacted by the Legislature as a
comprehensive scheme to govern land use planning for the entire coastal zone of
California. The Legislature found that the California coastal zone is a distinct and
valuable natural resource of vital and enduring interest to all the people; that the
permanent protection of the states natural and scenic resources is a paramount concern;
that it is necessary to protect the ecological balance of the coastal zone and that
existing developed uses, and future developments that are carefully planned and
developed consistent with the policies of this division, are essential to the economic and
social well-being of the people of this state . . . . ( 30001, subds. (a) and (d).)
[Citation.] The Coastal Act is to be liberally construed to accomplish its purposes and
objectives. (Pub. Resources Code, 30009.) Under it, with exceptions not applicable
here, any person wishing to perform or undertake any development in the coastal zone
must obtain a coastal development permit in addition to obtaining any other permit
required by law from any local government or from any state, regional, or local agency
. . . . (Id., 30600, subd. (a).) (Pacific Palisades, supra, 55 Cal.4th at pp. 793-794.)
The Coastal Act expressly recognizes the need to rely heavily on local
government [t]o achieve maximum responsiveness to local conditions, accountability,

This court granted the application of the Monterey Peninsula Regional Water
Authority to file an amicus curiae brief in support of Cal-Am and the application of the
Monterey County Water Resources Agency to file an amicus curiae brief in support of
the Coastal Commission.
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and public accessibility . . . . (Pub. Resources Code, 30004, subd. (a).) As relevant
here, it requires local governments to develop local coastal programs, comprised of a land
use plan and a set of implementing ordinances designed to promote the acts objectives of
protecting the coastline and its resources and of maximizing public access. (Id.,
30001.5, 3050030526; [citation.] Once the California Coastal Commission certifies
a local governments program, and all implementing actions become effective, the
commission delegates authority over coastal development permits to the local
government. (Pub. Resources Code, 30519, subd. (a), 30600.5, subds. (a), (b), (c).)
Moreover, [p]rior to certification of its local coastal program, a local government may,
with respect to any development within its area of jurisdiction . . . , establish procedures
for the filing, processing, review, modification, approval, or denial of a coastal
development permit. (Id., 30600, subd. (b)(1).) An action taken under a locally issued
permit is appealable to the commission. (Id., 30603.) Thus, [u]nder the Coastal Acts
legislative scheme, . . . the [local coastal program] and the development permits issued by
local agencies pursuant to the Coastal Act are not solely a matter of local law, but
embody state policy. [Citation] In fact, a fundamental purpose of the Coastal Act is to
ensure that state policies prevail over the concerns of local government. [Citation.]
Moreover, in certain areas, sometimes referred to as dual permit jurisdictions, an
applicant must obtain a permit from the local entity and after obtaining the local permit, a
second permit from the commission. (Pub. Resources Code, 30600, 30601; Cal. Code
Regs., tit. 14, 13301, subd. (a).)4 (Pacific Palisades, supra, 55 Cal.4th at pp. 793
794.) Thus, the Coastal Act requires a coastal development permit for any
development in the coastal zone. (Pub. Resources Code, 30600.) (Id. at p. 794.)

All further undesignated references to regulations are to Title 14 of the


California Code of Regulations.
4

In the present case, the record reflects that the Citys local coastal program was
certified by the Coastal Commission in 1982.
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Cal-Ams Application for a Coastal Development Permit
On March 12, 2013, Cal-Am submitted an amended application for a coastal
development permit to the City of Marina (City) that superseded its previous application.
Cal-Am sought a coastal development permit in order to construct and operate a
temporary test slant well on private beach property owned by CEMEX, a company that
used the site for sand mining. The temporary test slant well project would include
infrastructure in addition to the test slant well, such as monitoring wells and a discharge
pipe.
Cal-Am stated in its application that the purpose of the temporary test slant well
project was to gather technical data related to feasibility of a subsurface intake system
for a potential future desalination project. . . . The temporary slant test well data will be
used, in part, to facilitate design and intake siting for the separately proposed Monterey
Peninsula Water Supply Project (MPWSP). The technical data sought included
current, site-specific field data concerning geologic, hydrogeologic, and water quality
characteristics of the Sand Dunes Aquifer, Salinas Valley Aquitard, and [the] 180-Foot
Aquifer.
Cal-Am noted in its application that numerous environmental issues had been
addressed. For example, Cal-Am stated that the temporary test slant well would be
constructed and pumped during the five-month non-nesting period for the snowy plover,
from October 2013 through February 2014. The site for the temporary test slant well was
chosen to minimize or avoid disruption of the snowy plover habitat.
Also included in Cal-Ams application was its detailed analysis of the projects
consistency with the California Coastal Act ( 30000 et seq.) and the Citys local coastal
plan (LCP). Cal-Ams analysis concluded that the project was consistent with both
5

provisions and would not adversely impact the environment, agriculture, or public
recreational activities.
B. Citys Denial of Cal-Ams Application
1. Initial Study/Mitigated Negative Declaration
After Cal-Am submitted its application for a coastal development permit, the City
prepared an initial study to determine whether the proposed temporary test slant well
would have a significant adverse impact on the environment. The initial study noted that
a hydrologic working group had been formed to facilitate the environmental planning and
design of the the Monterey Peninsula Water Supply Project, and that data obtained from
the temporary test slant well would be used to analyze the potential effects of subsurface
pumping at this location on groundwater use and quality within the Salinas Valley
Groundwater Basin.
The initial study reviewed the project components, site access, project
construction, project operation and decommissioning, potential environmental impacts,
mitigation measures, and residual environmental impact. Among other things, the initial
study stated that [t]he slant test well would operate continuously, 24 hours a day for a
period of up to 24 months. Routine operation would include continuous extraction of
water from the Dune Sand and/or 180-FTE Aquifers and discharge into the Pacific Ocean
via the existing outfall pipe. Additionally, [a]t the conclusion of the 24-month
operational phase, the slant test well, monitoring well clusters, and all related
appurtenances and infrastructure are proposed to be decommissioned and removed.
The initial study concluded with a May 16, 2014 environmental declaration by
Citys planning services manager that stated: On the basis of this Initial Study and
Analysis: [] . . . [] I find that although the proposed project could have a significant
effect on the environment, there will not be a significant effect in this case because
revisions in the project have been made by or agreed to by the project proponent. A
MITIGATED NEGATIVE DECLARATION will be prepared.
6

In July 2014 the Citys Planning Commission held a public hearing and declined
to certify the mitigated negative declaration and also declined to approve or disapprove
Cal-Ams application for a coastal development permit for the temporary slant test well.
2. Cal-Ams Appeal to the City Council
Cal-Am filed an appeal of the Planning Commissions decision to the City
Council. City staff then submitted a request to the City Council to open a public hearing
and consider Cal-Ams appeal. City staff also submitted a report regarding the temporary
test slant well project, accompanied by a draft resolution certifying the mitigated negative
declaration and approving Cal-Ams application for a coastal development permit. The
draft resolution contained CEQA findings as well as findings regarding the proposed
projects consistency with the LCP.
The City Council held a public hearing on September 3, 2014, to consider CalAms appeal of the Planning Commissions decision. On September 4, 2014, the City
Council adopted Resolution No. 2014-103, which stated the City Councils findings and
its decision to deny Cal-Ams appeal. The City Council found that (1) based on the
whole record, it was unable to find that the temporary test slant well would not have a
significant effect on the environment; and (2) the initial study/mitigated negative
declaration does not reflect the independent decision of the City and . . . has not been
prepared in accordance with CEQA. The City Council concluded, as stated in
Resolution No. 2014-103, that [b]ased upon the above conclusions regarding CEQA, the
City is unable to approve the Project and therefore denies the Project without prejudice to
reconsideration at such time as the appropriate CEQA review is completed.
Thereafter, the City issued a notice of final local action (FLAN) in a letter dated
September 11, 2014. The FLAN stated: At a continued Public Hearing on September 4,
2014, the City of Marina City Council adopted Resolution No. 2014-103, on appeal
disapproving a mitigated Negative Declaration and denying Coastal Development Permit
CDP 2012-05, for the California American Slant Test Well Project located at CEMEXs
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Lapis Road property. The FLAN also stated that an appeal of the City Councils
decision could be filed with the Coastal Commission within 21 days of the final City
Council action on a Coastal Development Permit within the appeal zone.
C. Cal-Ams Appeal to the Coastal Commission
On September 24, 2014, Cal-Am filed an appeal to the Coastal Commission from
the City Councils decision to deny Cal-Ams application for a coastal development
permit for the temporary test slant well.
The documents attached to the appeal included Cal-Ams statement of reasons
supporting the appeal, which concluded that [b]ecause the proposed Project conforms to
the standards set forth in the Citys certified LCP and the public access policies set forth
in the Coastal Act, the Commission should grant [Cal-Ams] request for the CDP [coastal
development permit]. Issuing the CDP would allow completion of a critical test well
program that will further the policies and interests of numerous State and Federal
agencies, and will help ensure protection of the critical Carmel River ecosystem while
addressing the significant water supply crisis that the Monterey Peninsula is facing. . . .
[T]he proposed Project has broad support among State agencies and environmental
organizations, and would help inform decision-making on critical statewide water supply
questions.
1. Staff Report
The Coastal Commission issued a 63-page staff report on October 31, 2014, that
included the staff recommendations regarding Cal-Ams appeal. The staff report
described Cal-Ams project as follows: Construct and operate a test slant well and
associated monitoring wells to develop data necessary to assess the feasibility of the
project site as a potential long-term water source for a desalination facility.
The Coastal Commission staff report also included a summary of the staff
recommendations. Regarding the Coastal Commissions jurisdiction, the report noted
that the proposed test slant well project would be partially within the coastal
8

development permit jurisdiction of the City of Marina and partially within the
Commissions retained permit jurisdiction. Development within the Citys jurisdiction
includes all the projects land-based activities, which represent almost all of the projectrelated development. The only part of the project within the Commissions permit
jurisdiction is the portion of the slant well that is below grade and extends beneath the
beach and seafloor.
The staff report also addressed the Coastal Commissions appellate jurisdiction:
The Citys action is appealable to the Commission pursuant to [] Section 30603(a)(5),
which allows appeals of any development that constitutes a major public works facility.
Staff recommends the Commission determine that the appeal raises a substantial issue
with the consistency of the local governments action with the certified [LCP] and that
the Commission hold a de novo hearing.
Having conducted their review, the Coastal Commission staff recommended that
the Coastal Commission conditionally approve the coastal development permits for CalAms test slant well project. The recommendation was based on staff findings that (1)
alternative locations for the project were infeasible or more environmentally damaging;
(2) permit delays would not be in the public interest in obtaining a water supply to
replace the Carmel River; and (3) the project had been mitigated to the extent feasible by
including special conditions on the permit that required Cal-Am to avoid and minimize
effects on the environmentally sensitive habitat areas (ESHA). Staff recommended that
the project be approved by the Commission despite its inconsistency with the LCPs
habitat protection policy.
On November 11, 2014, Coastal Commission staff issued two addendums to the
staff report. The addenda added staff responses to comments and correspondence, but
did not change the staff recommendations that a substantial issue existed and Cal-Ams
permit application should be conditionally approved.

2. Proceedings Before the Coastal Commission


The Coastal Commission set a public hearing date of November 12, 2014, for CalAms appeal of the Citys decision denying Cal-Ams application for a coastal
development for the test slant well.
After holding the public hearing, the Coastal Commission issued its final adopted
findings. The Coastal Commissions findings were based on the staff report, and
included the following conclusion: The Commission finds that the proposed project
meets all of the tests of section 30260 and the parallel LCP policies. It therefore
exercises its discretion to approve this coastal-dependent industrial project, despite its
inconsistency with the LCPs habitat protection policy prohibiting non-resource
dependent development in primary habitat.
On November 17, 2014, the Coastal Commission issued its notice of intent to
issue permit. The coastal development permit for the test slant well issued on December
8, 2014. Several special conditions (including protection of biological resources and
project area restoration) were attached to the permit, which states that the coastal
development permit is granted to Cal-Am for [c]onstruction, operation, and
decommissioning of a test slant well at the CEMEX sand mining facility in the City of
Marina and beneath Monterey Bay in the County of Monterey.
D. Marina Coasts Petition for a Writ of Mandate
On January 15, 2015, Marina Coast filed a petition for writ of mandate
challenging the decision of respondent California State Lands Commission to issue a
general lease to real party in interest Cal-Am for the test slant well project. Both CalAm and the Coastal Commission answered the petition. The California State Lands
Commission is not a party to this appeal and the record reflects that in the proceedings
below the Coastal Commission has participated as the respondent.
Marina Coast sought a peremptory writ of mandate directing respondents to
comply with the requirements of CEQA and injunctive relief preventing any further
10

action to implement the project pending full compliance with CEQA. In its opening brief
in support of the petition for writ of mandate, Marina Coast argued that the petition
should be granted because the Coastal Commission lacked jurisdiction and had
committed numerous violations of CEQA.
Regarding jurisdiction, Marina Coast contended that the Coastal Commission
lacked appellate jurisdiction to consider Cal-Ams appeal of Citys denial of its
application for a coastal development permit because (1) Citys denial of the permit
application was without prejudice and therefore the denial was not a final action that
could be appealed; and (2) the Coastal Commissions finding of a substantial issue on
appeal was not supported by substantial evidence. Alternatively, Marina Coast
contended that the appeal should have been denied on the grounds that the Coastal
Commission had found the test slant well project to be inconsistent with Citys LCP and
the Coastal Commission could not override Citys denial of a major public works
project.
Marina Coast also argued that the Coastal Commissions granting of Cal-Ams
coastal development permit application violated many provisions of CEQA, as follows:
(1) failure to comply with CEQAs 30-day public review period for an environmental
document; (2) failure to respond to any significant environmental comments; (3)
improper piecemealing (analyzing the environmental impacts of the test slant well
separately when it is actually the initial phase of the Monterey Peninsula Water Supply
Project); (4) failure to establish an adequate baseline for environmental impacts to
hydrology and water quality; (5) failure to adequately analyze impacts or propose
adequate mitigation for environmentally sensitive habitat areas and special-status species;
and (6) failure to analyze a reasonable range of alternatives to the test slant well project.
In addition, Marina Coast argued that the Coastal Commissions staff report must
be re-noticed and re-circulated due to its failure to provide notice of the significant new

11

information included in an addendum. Both the Coastal Commission and Cal-Am filed
opposition to the writ petition.
E. Statement of Decision and Judgment
The trial court held a hearing on Marina Coasts writ petition on July 23, 2015.
The court issued its decision on the writ petition from the bench and, pursuant to the
parties agreement, the reporters transcript of the courts rulings was utilized in lieu of a
written statement of decision.
As stated in the reporters transcript of the hearing, the trial court made several
rulings leading to the courts decision to deny the writ petition. At the outset, the trial
court determined that the writ petition constituted a challenge to the Coastal
Commissions approval of the coastal development permit. The court also determined
that the standard of review with respect to the Coastal Commissions findings was
substantial evidence, while review of noncompliance with CEQA was limited to review
for prejudicial error.
The trial court then rejected Marina Coasts contention that the Coastal
Commission lacked appellate jurisdiction, finding that Citys denial of Cal-Ams
application for a coastal development permit was a final action that was appealable to the
Coastal Commission, and substantial evidence supported the Commissions finding that a
substantial issue existed.
Regarding the alleged CEQA violations, the trial court rejected Marina Coasts
contentions as follows: (1) the Coastal Commission was not required to comply with
CEQAs 30-day public notice period; (2) review of Citys denial of Cal-Ams coastal
development application for the test slant well did not constitute improper piecemealing
under CEQA; (3) there was substantial evidence that the Coastal Commission adequately
determined baseline hydrological conditions; (4) the Coastal Commission analyzed a
reasonable range of alternative locations for the project; (5) substantial evidence supports

12

the Coastal Commissions decision that any biological impacts would be fully mitigated;
and (6) the Coastal Commission was not required to revise or recirculate its staff report.
The judgment in favor of the Coastal Commission and Cal-Am and awarding their
costs was filed on August 24, 2015. The judgment also includes an order denying the
parties requests for judicial notice with the exception of the excerpts from Citys
Municipal Code, and states that the parties waived any request for a statement of
decision.
The trial court denied Marina Coasts motion for a stay and a preliminary
injunction in its June 5, 2015 order.
IV. DISCUSSION
A. Standard of Review
A permit applicant may seek judicial review of a Coastal Commission decision by
filing a petition for writ of administrative mandate under Code of Civil Procedure section
1094.5. ( 30801.) The inquiry in such a case shall extend to the questions whether the
respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner required by law, the order
or decision is not supported by the findings, or the findings are not supported by the
evidence. (Code Civ. Proc., 1094.5, subd. (b); La Costa Beach Homeowners Assn. v.
California Coastal Com. (2002) 101 Cal.App.4th 804, 814 (La Costa).) It is presumed
that the Coastal Commissions decision is supported by substantial evidence. (Ocean
Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th
215, 227.)
Our role here is precisely the same as that of the trial court. [I]n an
administrative mandamus action where no limited trial de novo is authorized by law, the
trial and appellate courts occupy in essence identical positions with regard to the
administrative record, exercising the appellate function of determining whether the record
13

is free from legal error. [Citations.] [Citation.] Thus, the conclusions of the superior
court, and its disposition of the issues in this case, are not conclusive on appeal.
[Citation.] [Citation.] [Citation.] [Citation.] (La Costa, supra, 101 Cal.App.4th at
pp. 814815.)5
The general rule is that [c]ourts may reverse an agencys decision only if,
based on the evidence before the agency, a reasonable person could not reach the
conclusion reached by the agency. [Citation.] [Citation.] (La Costa, supra, 101
Cal.App.4th 814; Code Civ. Proc., 1094.5, subd. (c); 21168.)6
B. Appellate Jurisdiction
As a threshold matter, Marina Coast contends that the Coastal Commission lacked
jurisdiction to hear Cal-Ams appeal of Citys denial of Cal-Ams application for a
coastal development permit for the test slant well. We independently review whether an

We deny the requests for judicial notice filed by Marina Coast, Cal-Am, and the
Monterey Peninsula Regional Water Authority. By statute, review of the [Coastal]
Commissions decision to grant a permit is by way of a writ of [administrative] mandate
in accordance with Section 1094.5 of the Code of Civil Procedure. ( 30801.) The
general rule in such actions is that judicial review is conducted solely on the record
of the proceeding before the administrative agency. [Citation.] [Citation.] [Citation.]
. . . Thus, in reviewing the Commissions decision, courts are confined to the record
before the Commission unless the petitioner shows it could not have produced the new
evidence in the exercise of reasonable diligence or unless relevant evidence was
improperly excluded at the administrative hearing. [Citation.] (Sierra Club v.
California Coastal Com. (2005) 35 Cal.4th 839, 863.)
6

Section 21168 provides: Any action or proceeding to attack, review, set aside,
void or annul a determination, finding, or decision of a public agency, made as a result of
a proceeding in which by law a hearing is required to be given, evidence is required to be
taken and discretion in the determination of facts is vested in a public agency, on the
grounds of noncompliance with the provisions of this division shall be in accordance with
the provisions of Section 1094.5 of the Code of Civil Procedure. [] In any such action,
the court shall not exercise its independent judgment on the evidence but shall only
determine whether the act or decision is supported by substantial evidence in the light of
the whole record.
14

agency has acted within its statutory jurisdiction [citations]. (Hagopian v. State of
California (2014) 223 Cal.App.4th 349, 360.)
1. Coastal Commissions Appellate Jurisdiction
The Coastal Commissions appellate jurisdiction is set forth in the Coastal Act.
As this court has stated, [t]he Coastal Act provides for administrative appeals to the
Coastal Commission in certain cases. ( 30603.) (McAllister v. County of Monterey
(2007) 147 Cal.App.4th 253, 273 (McAllister).) Relevant here, section 30603,
subdivision (a)(5) provides: After certification of its local coastal program, an action
taken by a local government on a coastal development permit application may be
appealed to the commission for only the following types of developments: [] . . . []
Any development which constitutes a major public works project or a major energy
facility. Marina Coast does not dispute that the proposed test slant well constitutes a
major public works project within the meaning of section 30603, subdivision (a)(5).7
The Coastal Act limits the grounds for an appeal where, as here, the appeal is from
the denial of a coastal development permit for a major public works project: The
grounds for an appeal of a denial of a permit pursuant to paragraph (5) of subdivision (a)
shall be limited to an allegation that the development conforms to the standards set forth
in the certified local coastal program and the public access policies set forth in this
division. ( 30603, subd. (b)(2).)
Thus, in this case [t]he Coastal Commissions appellate jurisdiction is limited to
determining whether the development conforms to the standards set forth in the certified

Major public works and Major energy facilities mean facilities that cost
more than one hundred thousand dollars ($100,000) with an automatic annual increase in
accordance with the Engineering News Record Construction Cost Index, except for those
governed by the provisions of Public Resources Code Sections 30610, 30610.5, 30611 or
30624. (Cal. Code Regs., tit. 14, 13012, subd. (a).)
15

local coastal program or the public access policies set forth in this division. ( 30603,
subd. (b)(1); [citation].) (McAllister, supra, 147 Cal.App.4th at p. 286.)
2. Final Local Action
Marina Coast contends that the Coastal Commission lacked jurisdiction to hear
Cal-Ams appeal for several reasons. First, Marina Coast argues that the Citys denial of
Cal-Ams application for a coastal development permit for the test slant well was not
appealable because the Citys denial was not a final action. The City Council stated in
Resolution No. 2014-103 that the City is unable to approve the Project and therefore
denies the Project without prejudice to reconsideration as [sic] such time as the
appropriate CEQA review is completed.
Marina Coast explains that the City Councils denial was not final because the
denial was without prejudice and the City did not make any findings as to the projects
conformity with the LCP. Although Marina Coast acknowledges that the City sent a
letter to the Coastal Commission regarding the City Councils denial of Cal-Ams permit
application that was entitled Notice of Final Local Action, Marina Coast maintains that
the Citys staff were not authorized to determine whether the City Council had taken final
action. Therefore, according to Marina Coast, there simply was no actionmuch less
final action under the Coastal Actthat triggered the [Coastal Commissions]
jurisdiction, and therefore nothing to appeal from.
The Coastal Commission rejects Marina Coasts contention that the Citys denial
of Cal-Ams application for a coastal development permit was not an appealable action,
emphasizing that section 30603, subdivision (a)(5), expressly authorizes appeals to the
Coastal Commission for an action taken by a local government on a coastal
development permit application for a major public works project or major energy
facility. The Coastal Commission also emphasizes that there is no legal authority for the
Citys denial of a coastal development application without prejudice and, in any event,

16

all denials of coastal development permit applications are implicitly without prejudice
since an applicant may reapply for a coastal development permit.
We observe that Marina Coast has not provided any decisional or statutory
authority for the proposition that a citys action in denying a coastal development permit
application without prejudice, and without making any findings as to whether the project
conforms with the local coastal program, is not a final action that may be appealed to the
Coastal Commission.
As support for its position, Marina Coast relies on California Code of Regulations,
title 14, section 13114, which provides: Where the appellant has exhausted local
appeals a de novo review of the project by the [Coastal] Commission shall occur only
after the local decision has become final. Marina Coast also relies on California Code of
Regulations, title 14, section 13570, which provides: A local decision on an application
for a development shall not be deemed complete until (1) the local decision on the
application has been made and all required findings have been adopted, including specific
factual findings supporting the legal conclusions that the proposed development is or is
not in conformity with the certified local coastal program and, where applicable, with the
public access and recreation policies of Chapter 3 of the Coastal Act, and (2) when all
local rights of appeal have been exhausted as defined in Section 13573.
We are not convinced that the regulatory scheme for Coastal Commission appeals
may be interpreted to provide that a city may render its denial of a coastal development
permit for a major public works project nonappealable by stating that the denial is
without prejudice and by declining to make any findings regarding the proposed
projects conformity with the local coastal program.
Even assuming for purposes of discussion that section 13570 and section 13114 of
title 14 of the California Code of Regulations may be interpreted to provide that a citys
denial of a coastal development permit application is not a final appealable action where
the denial was expressly made without prejudice and no findings of LCP conformity
17

were made, such an interpretation would be inconsistent with the applicable statute,
section 30603, subdivision (a)(5). That statute broadly authorizes appeals to the Coastal
Commission for an action taken by a local government on a coastal development permit
application for a major public works project, and does not require an appealable denial
of a coastal permit application to be made with prejudice or with findings of LCP
conformity. ( 30603, subd. (a)(5), italics added.) The general rule is that an
administrative agency has no discretion to promulgate a regulation which is inconsistent
with the governing statute. [Citation]; see Gov. Code, 11342.2.) (May v. City of
Milpitas (2013) 217 Cal.App.4th 1307, 1336.) Accordingly, we determine that Cal-Am
properly appealed the Citys action in denying Cal-Ams application for a coastal
development permit for the test slant well, a major public works project, to the Coastal
Commission pursuant to section 30603, subdivision (a)(5).
Moreover, [w]e are required to defer to the [Coastal] [C]ommissions
interpretation of its own regulations. Courts must defer to an administrative agencys
interpretation of a statute or regulation involving its area of expertise unless the
challenged construction contradicts the clear language and purpose of the interpreted
provision. [Citations.] (Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900,
938 (Ross).)
Here, the Coastal Commission explains in its respondents brief that [t]he
obvious intent of [Regs.,] section 13570 is to address those situations where a local
government has made a decision but is still in the process of adopting findings to support
the decision. It is intended to avoid premature appeals where the local government has
not yet stated the basis for its decision. Section 13570 does not apply to situations like
the one here, where the local government has made a decision, stated a basis, given notice
that its decision is final, and has made all of the findings it intends to make in connection
with its final decision. [] . . . [W]hile section 13570 imposes requirements on local
governments, it is not a provision that governs the Commissions jurisdiction to hear an
18

appeal. We will defer to the Coastal Commissions interpretation since it does not
contradict the clear language and purpose of section 13570 of title 14 of the California
Code of Regulations. (See Ross, supra, 199 Cal.App.4th at p. 938.)
We further determine that Cal-Ams appeal was proper under California Code of
Regulations, title 14, section 13114, which, as we have noted, provides: Where the
appellant has exhausted local appeals a de novo review of the project by the [Coastal]
Commission shall occur only after the local decision has become final. Section 13114 is
preceded by section 13110 of title 14 of the California Code of Regulations, which
provides: Within three (3) working days of receipt of notice of final local decision, the
executive director of the Commission shall post a description of the development in a
conspicuous location in the Commission office and the appropriate district office. The
executive director shall at the same time mail notice of the local action to the members of
the Commission. The ten working day appeal period shall be established from the date of
receipt of the notice of the final local government action.8
In this case, the City sent the Coastal Commission a letter dated September 11,
2014, that was captioned Notice of Final Local Action, California American Water Slant
Test Well Project. The letter set forth Citys final local action as follows: At a
continued Public Hearing on September 4, 2014, the City of Marina City Council adopted
Resolution No. 2014-103, on appeal disapproving a mitigated Negative Declaration and
denying Coastal Development Permit CDP 2012-05, for the California American Water
Slant Test Well Project located at CEMEXs Lapis Road property. The letter also
provides the deadlines for appealing the City Councils decision to the Coastal
Commission. Therefore, pursuant to section 13110 of title 14 of the California Code of

The appeal must be received in the Commission district office with jurisdiction
over the local government on or before the tenth (10th) working day after receipt of the
notice of the permit decision by the executive director. (Regs., 13111, subd. (c).)
19

Regulations, the Coastal Commission was obligated to begin the appeal process for CalAms appeal because it had received a notice of final local action. Marina Coasts
contention that the letter did not constitute a notice of final local action because it was not
authorized by the City Council is not supported by a reference to any supporting evidence
in the record before the Coastal Commission.
We therefore find no merit in Marina Coasts contention that the Coastal
Commission lacked appellate jurisdiction because the Citys denial of Cal-Ams coastal
development permit was not an appealable final action.
3. Substantial Issue
Marina Coast also contends that the Coastal Commission lacked appellate
jurisdiction and failed to proceed in the manner required by law because the Commission
erroneously found that Cal-Ams appeal raised a substantial issue.
The Coastal Act provides that [t]he commission shall hear an appeal unless it
determines the following: [] [] With respect to appeals to the commission after
certification of a local coastal program, that no substantial issue exists with respect to the
grounds on which an appeal has been filed pursuant to Section 30603. ( 30625, subd.
(b)(2).)
A substantial issue is defined as one that presents a significant question as to
conformity with the certified local coastal program. (Regs., tit. 14, 13115.)[9] We

California Code of Regulations, title 14, section 13115, subdivision (b)


provides: Unless the Commission finds that the appeal raises no significant question as
to conformity with the certified local coastal program or, in the case of a permit
application for a development between the sea and the first public road paralleling the sea
(or within 300 feet of the inland extent of any beach or of the mean high tide line of the
sea where there is no beach) that there is no significant question with regard to the public
access and public recreation policies of Chapter 3 of the Coastal Act of 1976, the
Commission shall consider the application de novo in accordance with the procedures set
forth in Sections 13057-13096.
20

review the [Coastal] Commissions determination of whether a substantial issue has been
raised for abuse of discretion. . . . (Code Civ. Proc., 1094.5, subd. (b); [citations].)
(Alberstone v. California Coastal Com. (2008) 169 Cal.App.4th 859, 863864, fn.
omitted.)
We understand Marina Coast to contend that the Coastal Commissions finding
that a substantial issue was raised by Cal-Ams appeal is not supported by substantial
evidence. The Coastal Commission disagrees, arguing that it did not abuse its discretion
in finding under five factors that a substantial issue was raised by Cal-Ams appeal.
In its final adopted findings, the Coastal Commission set forth the five factors that
the Commission considers in determining whether a substantial issue exists: (1) The
degree of factual and legal support for the local governments decision that the
development is consistent or inconsistent with the certified LCP and with public access
policies of the Coastal Act; (2) The extent and scope of the development as approved
or denied by the local government; (3) The significance of the coastal resources
affected by the decision; (4) The precedential value of the local governments decision
for future interpretation of its LCP; and, (5) Whether the appeal raises only local issues
or those of regional or statewide significance.
The Coastal Commission concluded as follows: With the lack of City findings
showing that the project does not conform to relevant LCP and Coastal Act public access
provisions, the Commission finds that there is insufficient factual and legal support for
the Citys denial of the proposed test well. The appeal raises significant regional
concerns, as the data that will be produced by the test well are needed to assess the
feasibility, location and design of a desalination facility that is intended to address
regional water shortages. It is also poor precedent for the City to deny a [coastal
development permit] without making any findings as to why the proposed project does
not conform to the Citys LCP. In addition, while the project is not expected to impact a
significant portion of the CEMEX site, it will be constructed in areas that are within
21

primary habitat, so significant coastal resources will be affected by the proposed project.
Thus, these four factors all weigh strongly in favor of a finding of substantial issue.
Conversely, the extent and scope of this project are fairly minor, as project construction is
expected to adversely affect less than one acre and the test well is proposed to operate for
only two years, so this one factor weighs more towards a finding of no substantial issue.
However, four of the five substantial issue factors weigh heavily in favor of a finding of
substantial issue, so when all five factors are taken together, the Commission finds that
the appeal raises [a] substantial issue regarding conformity to the LCP and to the Coastal
Acts public access policies.
Thus, the Coastal Commission determined that a substantial issue was raised by
Cal-Ams appeal because there was a significant question as to test slant well projects
conformity with the Citys certified local coastal program in the absence of any findings
by the City Council regarding conformity. (See Regs., 13115.) In addition, the Coastal
Commission determined that a substantial issue existed as to the projects conformity
with the LCPs habitat protection provisions because the test slant well would be
constructed in a primary habitat area.
On this record, we determine that the Coastal Commissions carefully reasoned
finding of a substantial issue pursuant to section 30625, subdivision (b)(2) does not
constitute an abuse of discretion, since [a] ruling that constitutes an abuse of discretion
has been described as one that is so irrational or arbitrary that no reasonable person
could agree with it. [Citation.] (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 773.)
4. Local Coastal Program Conformity
Finally, we understand Marina Coast to contend that the Coastal Commission
lacked appellate jurisdiction to approve Cal-Ams coastal development permit application
for the test slant well project because the project did not conform to the habitat protection
provisions in the Citys LCP.
22

The Coastal Commission analyzed the test slant well project and found that the
project as proposed, does not conform to the Habitat Protection policies in the Citys
[local coastal program]. However, because the proposed project is considered a coastaldependent industrial facility and the LCP designates coastal-dependent industrial uses as
appropriate uses on this site, consistent with Coastal Act Section 30260, such uses may
be approved despite inconsistencies with other LCP policies.
In reaching this conclusion, the Coastal Commission reviewed the relevant
provisions of the LCP. First, the Coastal Commission noted that when the Commission
certified the Citys LCP, the Coastal Commission acknowledged the importance of the
Citys dune ecosystem to provide habitat for rare and endangered species. It nevertheless
designated the area north of [R]eservation Road and west of Dunes Drive as Coastal
Conservation and Development (CD), in which appropriate uses include commercial
activities dependent for economic survival on proximity to the ocean, salt water or other
elements only available in this particular environment. [LCP] p. 15.[10] The LCP states
that this designation is consistent with section 30260. [11]

10

At page 15, the Citys LCP states: Coastal Conservation and Development
uses shall be allowed on the west side of Dunes Drive. These activities shall include, but
not be limited to, . . . other commercial activities dependent for economic survival on
proximity to the ocean, salt water or other elements only available in this particular
environment. Development in this area will be allowed in already disturbed areas (see
Sensitive Habitat section).
11

Section 30260 provides: Coastal-dependent industrial facilities shall be


encouraged to locate or expand within existing sites and shall be permitted reasonable
long-term growth where consistent with this division. However, where new or expanded
coastal-dependent industrial facilities cannot feasibly be accommodated consistent with
other policies of this division, they may nonetheless be permitted in accordance with this
section and Sections 30261 [tanker facilities] and 30262 [oil and gas development] if (1)
alternative locations are infeasible or more environmentally damaging; (2) to do
otherwise would adversely affect the public welfare; and (3) adverse environmental
effects are mitigated to the maximum extent feasible.
23

Second, the Coastal Commission determined whether the proposed test slant well
constituted a coastal-dependent industrial facility, such that it is an allowed use in the
[Coastal Conservation and Development area] and subject to [section] 30260 and LCP
provisions for coastal-dependent industrial uses. Since the LCP did not define coastaldependent development, the Coastal Commission turned to the statutory definition
provided by section 30101, which states: Coastal-dependent development or use
means any development or use which requires a site on, or adjacent to, the sea to be able
to function at all. Applying this definition, the Coastal Commission determined that the
test slant well was a coastal-dependent industrial facility since the well was dependent on
accessing seawater and had to be located on or adjacent to the sea in order to function,
and also because the well would be implemented by Cal-Am, an entity that is part of the
water industry.
Finally, the Coastal Commission considered whether the test slant well project
could be approved as a coastal-dependent industrial project although the project was
inconsistent with the LCPs habitat protection policy prohibiting non-resource
dependent development in primary habitat. The Coastal Commission resolved the
inconsistency by applying the test provided by section 30260: [W]here new or
expanded coastal-dependent industrial facilities cannot feasibly be accommodated
consistent with other policies of this division, they may nonetheless be permitted in
accordance with this section . . . if (1) alternative locations are infeasible or more
environmentally damaging; (2) to do otherwise would adversely affect the public welfare;
and (3) adverse environmental effects are mitigated to the maximum extent feasible.
The Coastal Commission found that (1) the site for the test slant well was in an
area that had been continually disturbed by sand mining for several decades; (2) denial of
the permit for the test slant well would adversely affect the public welfare because the
test well was necessary to inform the design of a potential full-scale [desalination]
facility; and (3) the Commission had imposed a number of special conditions on the
24

coastal development permit that would mitigate the environmental effects to the
maximum extent feasible, such as requiring project construction and decommissioning to
occur primarily outside the breeding and nesting season for the Western snowy plover,
the active season for the Smiths blue butterfly, and the blooming period of the Monterey
spineflower.
As a result of these findings, the Coastal Commission concluded that the
proposed project meets all of the tests of section 30260 and the parallel LCP policies.
[The Commission] therefore exercises its discretion to approve this coastal-dependent
industrial project, despite its inconsistency with the LCPs habitat protection policy
prohibiting non-resource dependent development in primary habitat.
Marina Coast argues that the Coastal Commission acted in excess of its
jurisdiction and improperly overrode the Citys LCP by approving the test slant well
project despite the projects inconsistency with the habitat protection policies precluding
development in primary habitat unless the project is dependent on those resources.
Additionally, Marina Coast argues that section 30260 is not relevant because that section
is considered when the Coastal Commission is certifying a LCP, not when the Coastal
Commission is exercising its appellate jurisdiction over a citys denial of an application
for a coastal development permit.
Rejecting Marina Coasts arguments, the Coastal Commission points out that the
Citys LCP expressly authorizes industrial uses, such as the test slant well, in the already
disturbed area on the west side of Dunes Drive where such uses are dependent on
proximity to the ocean. In addition, the Coastal Commission maintains that it may
properly consider section 30260 in its interpretation of the LCP and its interpretation is
entitled to deference. We agree.
[A] fundamental purpose of the Coastal Act is to ensure that state policies prevail
over the concerns of local government. [Citation.] (Pacific Palisades, supra, 55 Cal.4th
at p. 794.) Thus, [u]nder the Coastal Acts legislative scheme, . . . the LCP and the
25

development permits issued by local agencies pursuant to the Coastal Act are not solely a
matter of local law, but embody state policy. The [Coastal] Commissions primary
responsibility is the implementation of the Coastal Act. It is designated the state coastal
zone planning and management agency for any and all purposes. ( 30330.) Local
government prepares the LCP. ( 30500, subd. (a).) But the LCP must be submitted for
the [Coastal] Commissions approval. ( 30512, subd. (a).) The [Coastal] Commission
may certify the LCP only if it meets the requirements of and is in conformity with the
policies of the Coastal Act. ( 30512, subd. (c).) (Charles A. Pratt Const. Co., Inc. v.
California Coastal Com. (2008) 162 Cal.App.4th 1068, 1075 (Pratt).)
Accordingly, in evaluating Marina Coasts contentions we are required to grant
broad deference to the [Coastal] Commissions interpretation of the [local coastal
program] since it is well established that great weight must be given to the administrative
construction of those charged with the enforcement and interpretation of a statute.
[Citations.] We will not depart from the Commissions interpretation unless it is clearly
erroneous. [Citation.] [Citation.] (Hines v. California Coastal Com. (2010) 186
Cal.App.4th 830, 849 (Hines).)
In this case, we determine that the Coastal Commissions interpretation of the
Citys LCP is not clearly erroneous. (See Hines, supra, 186 Cal.App.4th at p. 849.) As
we have noted, the Citys LCP provides that Coastal Conservation and Development
uses shall be allowed on the west side of Dunes Drive. These activities shall include, but
not be limited to, . . . other commercial activities dependent for economic survival on
proximity to the ocean, salt water or other elements only available in this particular
environment. Development in this area will be allowed in already disturbed areas (see
Sensitive Habitat section). Moreover, as we have noted, the LCP also states that this
designation is consistent with section 30260.
Therefore, we see no error in the Coastal Commissions interpretation of the LCP
to allow construction of the test slant well in a primary habitat area already disturbed by
26

sand mining because the test slant well meets the LCPs definition of a coastal-dependent
industrial facility, and also meets the section 30620 three-part test for placing the facility
in a sensitive habitat area. (See Hines, supra, 186 Cal.App.4th p. 849.) Thus, the Coastal
Commissions interpretation of the Citys LCP is consistent with the Commissions
obligation to ensure that the development permits issued by local agencies pursuant to
the Coastal Act are not solely a matter of local law, but embody state policy. (Pacific
Palisades, supra, 55 Cal.4th at p. 794.)
Marina Coasts reliance on the decision in City of Malibu v. California Coastal
Com. (2012) 206 Cal.App.4th 549 (Malibu) for a contrary conclusion is misplaced, since
that decision is distinguishable. The issue in Malibu was whether the Coastal
Commission had acted in excess of its jurisdiction when it approved amendments to a
citys certified LCP. (Id. at p. 552.) The appellate court determined that under section
30515, the Coastal Commission may override a citys decision not to amend its LCP only
where the amendment is sought for the development of a public works project or energy
facility that would meet the public needs of an area greater than that encompassed in the
local coastal program that were not anticipated when the LCP was certified. (Malibu,
supra, 206 Cal.App.4th at p. 564.) Since an LCP amendment is not at issue in this case,
the decision in Malibu is inapplicable and does not aid Marina Coast.
For these reasons, we determine that the Coastal Commission did not exceed its
appellate jurisdiction in considering Cal-Ams appeal from the Citys denial of its
application for a coastal development permit for the test slant well. Having resolved the
threshold jurisdictional issue, we turn to Marina Coasts remaining issues on appeal.
C. CEQA Issues
1. Public Notice Period
Marina Coast contends that the Coastal Commission violated its obligation under

27

CEQA, as provided by section 21091, subdivision (a),12 to provide a 30-day public


review period for its staff report. According to Marina Coast, the Coastal Commission
improperly circulated its environmental review documentthe staff reporton October
31, 2014, which was 13 days before the hearing held on November 12, 2014.
The Coastal Commission responds that the 13-day circulation period for its staff
report was proper because the Commission is a certified regulatory program and the
applicable statutes and regulations provide that the public review period for the staff
report must be for a reasonable time. The Coastal Commission also contends that
Marina Coast has failed to show prejudice. As we will discuss, we find the issue of
prejudice to be dispositive.
The purpose of the California Environmental Quality Act [CEQA; 21000 et
seq.] is to ensure that the agencies regulating activities that may affect the
environmental quality give primary consideration to preventing environmental damages.
[Citations.] Under the California Environmental Quality Act, a state agency with a
regulatory program may be exempted from the requirements of preparing initial studies,
negative declarations and environmental impact reports. This exemption arises if the
secretary certifies that the agencys regulatory program satisfies the criteria set forth in
section 21080.5. [Citations.] [] The secretary approved the [Coastal] [C]ommissions
certified regulatory program, including the statutes and regulations relating to the
preparation, approval and certification of the local coastal programs on May 22, 1979.
(Ross, supra, 199 Cal.App.4th at pp. 930-931; 15251, subd. (c).)13
12

Section 21091, subdivision (a) provides: The public review period for a draft
environmental impact report may not be less than 30 days. If the draft environmental
impact report is submitted to the State Clearinghouse for review, the review period shall
be at least 45 days, and the lead agency shall provide a sufficient number of copies of the
document to the State Clearinghouse for review and comment by state agencies.
13

Section 15251, subdivision (c) provides: The following programs of state


regulatory agencies have been certified by the Secretary for Resources as meeting the
28

Thus, [w]ith respect to environmental responsibilities, under CEQA and its


accompanying Guidelines,[14] Coastal Commission environmental review may substitute
for an [environmental impact report]. (See 21080.5, subds. (a), (e)(1); Guidelines,
15002, subd. (l ); 15251, subds. (c), (f).) Thus, the Coastal Commissions permit
appeal procedure is treated as the functional equivalent of the EIR process. [Citation.]
(McAllister, supra, 147 Cal.App.4th at p. 272.) The requirements for the Coastal
Commissions environmental review documentthe staff reportare set forth in
California Code of Regulations, title 14, section 13057. (Strother v. California Coastal
Com. (2009) 173 Cal.App.4th 873, 877.)
Section 21080.5, subdivision (d)(3)(B) provides that the environmental review
document of a state agencys certified regulatory program must be available for a
reasonable time for review and comment by other public agencies and the general
public. The Coastal Commissions regulations specify that [s]taff reports shall be
distributed within a reasonable time to assure adequate notification prior to the scheduled
public hearing. The staff report may either accompany the meeting notice required by
[Regs.,] section 13015 or may be distributed separately. (Regs., 13059.) The meeting
notice must be dispatched not later than 10 days preceding the meeting and containing
an agenda listing each item to be considered. (Regs., 13015.)

requirements of Section 21080.5: [] . . . [] The regulatory program of the California


Coastal Commission and the regional coastal commissions dealing with the consideration
and granting of coastal development permits under the California Coastal Act of 1976,
Division 20 (commencing with Section 30000) of the Public Resources Code.
14

The regulations that guide the application of CEQA are set forth in title 14 of
the California Code of Regulations, and are often referred to as the CEQA Guidelines.
[Citation.] (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552,
1561, fn. 5.)

29

We need not determine whether the 30-day public review period for an EIR
(section 21091, subd. (a)) or the reasonable time period (Regs., 13059) for
distribution of a Coastal Commission staff report governs the public review period for a
staff report because Marina Coast has not demonstrated that the alleged error was
prejudicial. In that regard, we find the decision in Rominger v. County of Colusa (2014)
229 Cal.App.4th 690 (Rominger) to be instructive.
Noncompliance with CEQAs information disclosure requirements is not per se
reversible; prejudice must be shown. [Citation.] (Rominger, supra, 229 Cal.App.4th at
p. 709.) To determine if the noncompliance was prejudicial, we evaluate the nature of the
noncompliance to determine if it was of the sort that preclude[d] informed
decisionmaking and informed public participation. [Citation.] (Ibid.)
In Rominger, the plaintiffs challenged a mitigated negative declaration approved
by the defendant county with respect to a proposed subdivision. (Rominger, supra, 229
Cal.App.4th at p. 695.) They contended that the 29-day public review period that the
county had provided for the mitigated negative declaration was less than the full 30-day
period required under section 21091, subdivision (b). (Rominger, at pp. 705-706.) The
Rominger court concluded that no prejudice was shown from the shortened public review
period because the plaintiffs had point[ed] to no evidence in the record that anyone who
wanted to was prevented from reviewing the pertinent documents or from submitting
comments on those documents and no one had appeared at the public hearing to
complain that they had been prevented from participating in the review and comment
process. (Rominger, at pp. 709-710.)
We reach a similar result in the present case. Even assuming, without deciding,
that the Coastal Commissions staff report was subject to a 30-day public review period
pursuant to section 21091, subdivision (a), Marina Coast has pointed to no evidence in
the record showing that anyone was prevented from reviewing the staff report or other
pertinent documents, or complained at the November 12, 2014 hearing that the 13-day
30

review period was too short and had prevented them from participating in the review and
comment process. In its reply brief, Marina Coast argues that prejudice was shown due
to the number of CEQA violations that Marina Coast alleges occurred in the Coastal
Commission proceedings. We are not convinced by this argument, since Marina Coast
does not identify any incidents or complaints showing that the 13-day public review
period provided by the Coastal Commission for its staff report prevented public review or
participation.
We therefore find no merit in Marina Coasts contention that the 13-day public
review period provided by the Coastal Commission constitutes a basis for relief in this
action. (See Rominger, supra, 229 Cal.App.4th at p. 710.)
2. Response to Public Comments
Marina Coast contends that the Coastal Commission failed to respond to any of
the significant environmental points raised in public comments during its evaluation of
the proposed test slant well project, which violated the Coastal Commissions own
regulations (Regs., 13057, subd. (c)(3)).
The Public Resources Code provides that [t]o qualify for certification pursuant to
this section, a regulatory program shall require the utilization of an interdisciplinary
approach that will ensure the integrated use of the natural and social sciences in
decisionmaking and that shall meet all of the following criteria: [] . . . [] Require that
final action on the proposed activity include the written responses of the issuing authority
to significant environmental points raised during the evaluation process. ( 21080.5,
subd. (d)(1)(D).)
As we have noted, the Coastal Commissions regulatory program for considering
and granting coastal development permits was approved in 1979. (Ross, supra, 199
Cal.App.4th at p. 930; 15251, subd. (c).) The Coastal Commissions regulations, which
are part of its regulatory program, state: The executive director shall prepare a written
staff report for each application filed pursuant to section 13056, [with exceptions not
31

relevant here]. The staff report shall include the following: [] . . . [] Staffs
recommendation, . . . (Regs., 13057, subd. (a)(6).) The regulations further state:
The staffs recommendation required by [ 13057,] subsection (a)(6) above shall
contain: [] . . . [] Responses to significant environmental points raised during the
evaluation of the proposed development as required by the California Environmental
Quality Act. (Regs., 13057, subd. (c)(3).)15
Marina Coast argues more specifically that the Coastal Commission failed to
provide any responses to significant environmental points raised in public comments
regarding (1) hydrological and groundwater impacts; (2) impacts to endangered species
and environmentally sensitive habitat areas; (3) greenhouse gas emissions and air quality
impacts; (4) the adequacy and effectiveness of proposed mitigation; (5) the failure to
consider feasible alternatives; and (6) the failure to establish an adequate baseline for
groundwater impacts.
According to the Coastal Commission, the staff report and its addenda
demonstrate that the Commission complied with its obligation to respond in writing to
significant environmental points, and the Commission also responded to comments made
during the November 12, 2014 hearing.
Our analysis is guided by the decision of the California Supreme Court in
Environmental Protection Information Center v. California Dept. of Forestry and Fire
Protection (2008) 44 Cal.4th 459 (EPIC). In EPIC, the court stated: [P]ublic review
and comment . . . ensures that appropriate alternatives and mitigation measures are
15

In conducting its de novo review of a coastal development application on


appeal, the Coastal Commission considers the application under the same rules as a
coastal development permit application made to the Commission in the first instance:
Unless the commission finds that the appeal raises no substantial issue in accordance
with the requirements of Public Resources Code Section 30625(b), and Section 13115(a)
and (c) of these regulations, the commission shall conduct a de novo consideration of the
application in accordance with the procedures set forth in Sections 13114 and 1305713096 of these regulations. (Regs., 13321.)
32

considered, and permits input from agencies with expertise . . . . [Citations.] Thus public
review provides the dual purpose of bolstering the publics confidence in the agencys
decision and providing the agency with information from a variety of experts and
sources. [Citation.] (Id. at p. 486.)
If it is established that a state agencys failure to consider some public comments
has frustrated the purpose of the public comment requirements of the environmental
review process, then the error is prejudicial. [Citation.] . . . [] On the other hand, an
agencys failure to consider public comments is not necessarily prejudicial. (EPIC,
supra, 44 Cal.4th at p. 487.) Agencies generally have considerable leeway regarding
such response. When an agency adequately addresses an environmental issue in response
to one commenter, it may refer to the prior response when addressing other commenters,
and a failure to respond to a particular comment is not prejudicial error when the issue
raised by the comment is adequately addressed elsewhere. [Citation.] (Id. at p. 487, fn.
9.)
Although the Coastal Commissions staff did not format its written responses to
significant environmental points in a question and answer format, Marina Coast has not
provided any authority requiring that format in the Commissions staff report, or shown
in the alternative that the Commissions failure to respond in a question and answer
format constitutes prejudicial error. We therefore consider the adequacy of the Coastal
Commissions responses to significant environmental points as set forth in the staff report
and its addenda. (See Regs., 13057, subd. (c)(3).)
Hydrology and Groundwater Impacts
Marina Coast asserts that the public comments that raised significant
environmental points about hydrology and groundwater impacts include the following:
Marina Coasts own letters regarding the mitigation of groundwater impacts and its
concerns regarding salinity levels; a letter to the Coastal Commission from a county
supervisor suggesting that pumping from the test slant well be monitored and halted if
33

there is evidence of aquifer damage; and two letters from Ag Land Trust regarding the
protection of groundwater supplies for agriculture. According to Marina Coast, the
Coastal Commission provided no response to these environmental points.
The Coastal Commission maintains that it responded to these comments regarding
hydrology and groundwater impacts by adding Special Condition 11 to the staff
recommendation and by adding a discussion in an addendum to the staff report.
Our review of the administrative record shows the following responses by the
Coastal Commission. The staff report notes that [a]t least one of the opponents of the
test well project raises concerns that the test well . . . will have significant adverse
environmental impacts on coastal agriculture, particularly on the quantity and quality of
water available to neighboring agricultural interests. They assert that the aquifer
underlying their property is already subject to seawater intrusion and that the test well
will exacerbate this effect. [] . . . [] In order to address these concerns, Special
Condition 11 requires Cal-Am to monitor both the quantity and quality of water in areas
that may be affected by operation of its test well. [Fn. omitted.]
Special Condition 11 states: PRIOR TO STARTING PROJECT-RELATED
PUMP TESTS, the Permittee shall install monitoring devices at one or more offsite wells
within 5,000 feet of the project site to record water and salinity levels within the wells.
During the project pump tests, the Permittee shall, at least once per day, monitor water
and salinity levels within those wells. If water levels drop more than one foot, or if
salinity levels increase more than two parts per thousand from pre-pump test conditions,
the Permittee shall immediately stop the pump test and inform the Executive Director.
The Permittee shall not re-start the pump test until receiving an amendment to this
permit, unless the Executive Director determines no amendment is legally necessary.
In addition, Addendum 1 to the staff report includes a discussion of the monitoring
of water levels and the levels of total dissolved solids in onsite and inland wells that is
required by Special Condition 11, as well as the recommended mitigation measures.
34

The administrative record accordingly shows that the Coastal Commission


provided written responses to the significant environment points regarding hydrology and
groundwater impacts that were raised by public comments during the evaluation process
for the test slant well, as required by the Commissions regulations. (See Regs., 13057,
subd. (c)(3).)
Endangered Species and Environmentally Sensitive Habitat Areas
The public comments that raised significant environmental points about impacts to
endangered species and environmentally sensitive habitat areas that Marina Coast asserts
received no response from the Coastal Commission were contained in letters from Marina
Coast. The letters concerned the impact of the construction of the test slant well on the
snowy plovers breeding season and the inadequacy of the proposed mitigation of those
impacts.
Our review of the record shows that the Coastal Commissions staff report
included a discussion of the impacts on the Western snowy plover and the proposed
mitigation, as follows. The Western snowy plover is listed as threatened under the
federal [Endangered Species Act] and is considered a Species of Special Concern by the
CDFW [California Department of Fish and Wildlife]. The shoreline along the project site
is within designated critical habitat for the species. The CEMEX site provides nesting
habitat for the plover, with recent evidence of successful nesting. . . . Cal-Ams proposed
project construction activities would occur outside of the breeding and nesting period,
which runs from February 15 to September 1 of each year.
Addendum 1 to the staff report proposed a revision to the last sentence of the
above paragraph, which read: Some of Cal-Ams proposed construction activities
would occur outside of during the breeding and nesting period, which runs from February
15 to September October 1 of each year.
Addendum 1 also revised Special Condition 14.d., which the staff report
recommended for inclusion in Cal-Ams coastal development permit. As revised, Special
35

Condition 14.d. addressed construction impacts and mitigation with respect to the snowy
plover. For example, revised Special Condition 14.d. states: If active plover nests are
located within 250 300 feet of the project or access routes, avoidance buffers shall be
established to minimize potential disturbance of nesting activity, and the biologist shall
coordinate with and accompany the Permittees operational staff as necessary during the
nesting season to guide access and activities to avoid impacts to nesting plovers. The
biologist shall contact the USFWS [United States Fish and Wildlife Service] and CDFW
[California Department of Fish and Wildlife] immediately if a nest is found in areas near
the wellhead that could be affected by project operations. Operations shall be
immediately suspended until the Permitee submits to the Executive Director written
authorization to proceed from the USFWS.
Based on the administrative record, we therefore determine that the Coastal
Commission adequately responded to Marina Coasts comments regarding the
construction impacts on the snowy plover and the proposed mitigation with a good faith,
reasoned analysis in response. (Berkeley Keep Jets Over the Bay Com. v. Board of Port
Cmrs. (2001) 91 Cal.App.4th 1344, 1367, italics omitted; see EPIC, supra, 44 Cal.4th at
p. 487.)
Greenhouse Gases and Air Quality
The Coastal Commission received a letter from a concerned citizen who stated that
he had worked in the area of carbon management for several years and suggested that
greenhouse gas emission from the test slant well be measured so that the greenhouse gas
emission from the project slant wells can be accurately projected.
The Coastal Commission acknowledges that it did not provide a written response
to this public comment, but states: Given that this single comment did not point to any
evidence that the specific project before the Commission would have significant
environmental impacts, the Commission staffs determination that the letter did not raise

36

significant environmental points about the project, requiring specific analysis in the
staff report, was not clearly erroneous.
We determine that no response was required to the public comment on greenhouse
gases, since the citizens letter appears to concern potential greenhouse gas emissions
from a future desalination plant project, rather than the test slant well.
Other Public Comments
Marina Coast also argues that it and other commentators repeatedly questioned
the adequacy and effectiveness of proposed mitigation, the [Coastal Commissions]
failure to consider feasible alternatives, and the [Coastal Commissions] failure to
establish an adequate baseline from which to measure groundwater impacts.
According to Marina Coasts citations to the record, these general comments were
contained in Marina Coasts letters to the Coastal Commission. Since the Coastal
Commissions staff report demonstrates that the Coastal Commission considered
mitigation of environmental impacts in a number of areas (e.g., snowy plover,
groundwater), reasonable alternatives, and groundwater baselines, we are not convinced
that the Coastal Commissions response to Marina Coasts general comments was
inadequate. Moreover, comments that are only objections to the merits of the project
itself may be addressed with cursory responses. [Citation.] (City of Irvine v. County of
Orange (2015) 238 Cal.App.4th 526, 553.)
For these reasons, our review of the administrative record shows that, contrary to
Marina Coasts contentions, the Coastal Commission complied with its obligation to
respond in writing to significant environmental points raised during the evaluation
process for the test slant well. (See Regs., 13057, subd. (c)(3).)
3. Piecemealing
Marina Coast contends that the Coastal Commission erred by piecemealing its
environmental review of the test slant well project. According to Marina Coast, the
Coastal Commission improperly considered the test slant separately from the Monterey
37

Peninsula Water Supply Project although the well is the initial phase of that overall
project, in violation of CEQA Guidelines, 15165.16
The California Supreme Court has established a test for piecemealing: We hold
that an EIR must include an analysis of the environmental effects of future expansion or
other action if: (1) it is a reasonably foreseeable consequence of the initial project; and
(2) the future expansion or action will be significant in that it will likely change the scope
or nature of the initial project or its environmental effects. (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396
(Laurel Heights I).) Thus, [t]he requirements of CEQA cannot be avoided by piecemeal
review which results from chopping a large project into many little oneseach with a
minimal potential impact on the environmentwhich cumulatively may have disastrous
consequences. [Citations.] (Rio Vista Farm Bureau Center v. County of Solano (1992)
5 Cal.App.4th 351, 370.)
The applicable standard of review is de novo: Whether a project has received
improper piecemeal review is a question of law that we review independently.
[Citation.] (Paulek v. California Department of Water Resources (2014) 231
Cal.App.4th 35, 46 (Paulek).) In performing our independent review, we have found the
decision in Communities for a Better Environment v. City of Richmond (2010) 184
Cal.App.4th 70 (Communities for a Better Environment) to be instructive.

16

Where individual projects are, or a phased project is, to be undertaken and


where the total undertaking comprises a project with significant environmental effect, the
lead agency shall prepare a single program EIR for the ultimate project as described in
Section 15168. Where an individual project is a necessary precedent for action on a
larger project, or commits the lead agency to a larger project, with significant
environmental effect, an EIR must address itself to the scope of the larger project. Where
one project is one of several similar projects of a public agency, but is not deemed a part
of a larger undertaking or a larger project, the agency may prepare one EIR for all
projects, or one for each project, but shall in either case comment upon the cumulative
effect. (Regs., 15165.)
38

The decision in Communities for a Better Environment involved a CEQA


challenge to a Chevron oil refinery upgrade project on the ground that a proposed new
pipeline for excess hydrogen was not evaluated as part of the project, thereby improperly
piecemealing the pipeline from the overall project. (Communities for a Better
Environment, supra, 184 Cal.App.4th at pp. 96-97.) The appellate court determined that
no improper piecemealing had occurred because the principal purpose of the overall
refinery upgrade project was to improve the refinerys ability to process crude oil, while
the principal purpose of the hydrogen pipeline project was to provide a way to transport
excess hydrogen to other hydrogen consumers. (Id. at p. 101.)
Similarly, a piecemealing challenge was rejected in Paulek because the two
projects at issue each had a different purpose. The Paulek court considered whether the
separation of an emergency outlet extension into a different project from the Perris Dam
Remediation Project constituted improper piecemealing under CEQA. (Paulek, supra,
231 Cal.App.4th at p. 39.) The court determined that the principal purpose of the dam
remediation and outlet tower reconstructionto improve the ability of the Perris Lake
facility itself to withstand seismic eventsis different from, and does not depend on, the
functioning of the emergency outlet extension, the purpose of which is to transport water
out of the lake and safely downstream from the dam, should it be necessary to do so.
(Id. at p. 47.)
Since the administrative record reflects that the test slant well has a different
principal purpose than the Monterey Peninsula Water Supply Project, we are not
convinced by Marina Coasts piecemealing argument. The Coastal Commission staff
report states that the test slant wells main project purpose is to develop the data needed
to determine the overall feasibility, available yield, and hydrogeologic effects of
extracting water from this site that might be used by Cal-Ams separately proposed
desalination facility. In contrast, the [Monterey Peninsula Water Supply Project]
includes slant wells that would be located at the CEMEX site, a desalination facility to be
39

located about two miles inland of the test well site adjacent to a regional wastewater
treatment facility, pipelines, and the other related facilities needed to produce and deliver
water to the Monterey Peninsula.
Thus, the principal purpose of the test slant well is to gather data. In contrast, the
principal purpose of the Monterey Peninsula Water Supply Project is to provide water
from a desalination facility. Moreover, Marina Coast has not shown that the proposed
desalination facility will likely change the scope or nature of the test slant well or its
environmental effects, since the record reflects that the test slant well would either be
decommissioned or remain a well. Therefore, the second prong of the Laurel Heights I
test is not met. (See Laurel Heights I, supra, 47 Cal.3d 376, 396.) Accordingly, we
determine that the Coastal Commission did not engage in improper piecemealing of the
test slant well project.
4. Mitigation of Biological Impacts
Marina Coast argues that the Coastal Commission violated CEQA by failing to
disclose, analyze, or propose legally adequate mitigation for the [test slant wells]
significant impacts on special-status species and [environmentally sensitive habitat
areas].
Cal-Am disagrees, contending that Marina Coasts argument regarding biological
impacts is moot because construction of the test slant well is complete. Alternatively,
Cal-Am contends that the Coastal Commissions changes to Special Condition 14 show
that the Commission determined that the biological impacts would be fully mitigated.
We will resolve the issue on the merits, since we determine that the completion of
the test slant well does not moot Marina Coasts claim. A case is moot when any ruling
by this court can have no practical impact or provide the parties effectual relief.
[Citation.] (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th
880, 888.) Thus, an appellate challenge under CEQA is not moot where, as here, the
project can be modified, torn down, or eliminated to restore the property to its original
40

condition. (Id. at p. 889; see also California Oak Foundation v. Regents of University of
California (2010) 188 Cal.App.4th 227, 280, fn. 31 (California Oak Foundation) [under
CEQA Guidelines, 15233 a responsible agencys approval of project provides
permission to proceed with the project at the applicants own risk pending a final decision
in a lawsuit]; but see Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378
[CEQA challenge to EIR moot where project completed and trees cut down and
replaced].)
Turning to Marina Coasts merits argument, we begin by reiterating that the
Coastal Commissions regulatory program for considering and granting coastal
development permits is a certified regulatory program. (Ross, supra, 199 Cal.App.4th at
p. 930; 15251, subd. (c).) Under CEQA law, such certified regulatory programs may
use a program-generated written report with sufficient environmental analysis . . . .
[Citations.] As an in-lieu EIR, such a report must describe the project, reasonable
alternatives to it, and mitigation measures for its environmental impacts (or a statement of
overriding considerations) . . . . ( 21080.5, subd. (d)(3);[17] see also 21081, subd.
(b);[18] [Citation.] (San Joaquin River Exchange Contractors Water Authority v. State
Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 11251126 (San Joaquin
River).)
Specifically, CEQA requires an EIR to discuss a projects potential impacts to
biological resources if the lead agency determines those impacts are significant.

17

Section 21080.5, subdivision (d)(3) provides: (3) The plan or other written
documentation required by the regulatory program does both of the following: [] (A)
Includes a description of the proposed activity with alternatives to the activity, and
mitigation measures to minimize any significant adverse effect on the environment of the
activity.
18
Section 21081, subdivision (b) provides: With respect to significant effects
which were subject to a finding under paragraph (3) of subdivision (a), the public agency
finds that specific overriding economic, legal, social, technological, or other benefits of
the project outweigh the significant effects on the environment.
41

( 21002.1, 21081.) (California Oak Foundation, supra, 188 Cal.App.4th at p. 280.)


The EIR (or here, the in-lieu Coastal Commission staff report) must also include a
detailed statement setting forth the [m]itigation measures proposed to minimize
significant effects on the environment. ( 21100, subd. (b)(3); CEQA Guidelines,
15126.4.)
Where there is a factual dispute over whether adverse effects have been
mitigated or could be better mitigated [citation], the agencys conclusion is reviewed
only for substantial evidence. (Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard).) The CEQA Guidelines
define [s]ubstantial evidence as enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached. (CEQA Guidelines,
15384.)
The petitioner has the burden of (1) setting forth all of the evidence material to the
agencys finding that the mitigation measures chosen by the agency would reduce the
adverse impacts of the project; and (2) showing that the evidence could not reasonably
support the finding. [Citation.] (California Native Plant Society v. City of Rancho
Cordova (2009) 172 Cal.App.4th 603, 626 (California Native Plant); see also Save our
Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th
99, 139 [petitioners bear the burden of proving that the record does not contain
substantial evidence to support the agencys decision].)
In this case, we understand Marina Coast to argue that there is no evidence in the
record to show that the mitigation proposed by the Coastal Commission in its staff report
would reduce the adverse impact of the construction of the test slant well on the snowy
plover nesting season. Our review of the administrative record shows that the Coastal
Commission identified the Western snowy plover as a special-status species in its staff
report and determined that [t]he shoreline along the project site is within the designated
42

critical habitat for the species. The staff report also included a number of mitigation
measures.
As Cal-Am points out, Addendum 1 to the staff report includes revisions to
Special Condition 14, which discusses the measures that would be utilized to mitigate the
impacts on the Western snowy plover and other species. Among other measures, Special
Condition 14.d. requires a biologist to conduct a breeding and nesting survey of sensitive
avian species within 500 feet of the project footprint and to ensure that nesting birds are
not disturbed by construction noise. Special Condition 14.d. also requires that avoidance
buffers be established to minimize potential impacts to active Western snowy plover
nests located within 300 feet of the project or access routes, and mandates that operations
be immediately suspended if a nest is found near the wellhead that could be affected by
project operations.
We find that Marina Coast has failed to meet its burden to show that the evidence
in the record before the Coastal Commission could not reasonably support the
Commissions finding that the mitigation measures required by Special Condition 14 will
reduce the adverse impacts on the Western snowy plover. (See California Native Plant,
supra, 172 Cal.App.4th at p. 626.) However, Marina Coast also argues that any impact
on the dune habitat where the test slant well will be located is prohibited because the
dune habitat is a primary habitat area and an environmentally sensitive habitat area.
The staff report states that the Coastal Commission found that the coastal dune
area in which the proposed project would be located constitutes ESHA [an
environmentally sensitive habitat area]. Under CEQA, [e]nvironmentally sensitive
habitat areas shall be protected against any significant disruption of habitat values, and

43

only uses dependent on those resources shall be allowed within those areas.19 ( 30240,
subd. (a); see Hines, supra, 186 Cal.App.4th at p. 841.)
CEQA also provides that [c]oastal-dependent industrial facilities shall be
encouraged to locate or expand within existing sites and shall be permitted reasonable
long-term growth where consistent with this division. However, where new or expanded
coastal-dependent industrial facilities cannot feasibly be accommodated consistent with
other policies of this division, they may nonetheless be permitted in accordance with this
section and Sections 30261 [tanker facilities] and 30262 [oil and gas development] if (1)
alternative locations are infeasible or more environmentally damaging; (2) to do
otherwise would adversely affect the public welfare; and (3) adverse environmental
effects are mitigated to the maximum extent feasible. ( 30260; see Gherini v.
California Coastal Com. (1988) 204 Cal.App.3d 699, 707 (Gherini).)
Therefore, under section 30260, a coastal-dependent facility like the test slant well
may be located in an environmentally sensitive habitat area such as the coastal dunes if
the three-part test of section 30260 is met. (See Gherini, supra, 204 Cal.App.3d at pp.
707-709.) Marina Coasts reliance on the decision in Bolsa Chica Land Trust v. Superior
Court (1999) 71 Cal.App.4th 493 (Bolsa Chica) is misplaced, since that decision does not
support its contention that placement of the test slant well on the environmentally
sensitive area of the coastal dunes is prohibited under CEQA. In Bolsa Chica, the
appellate court determined that [t]he Coastal Act does not permit destruction of an
environmentally sensitive habitat area (ESHA) simply because the destruction is
mitigated offsite. At the very least, there must be some showing the destruction is needed

19

Environmentally sensitive area means any area in which plant or animal life
or their habitats are either rare or especially valuable because of their special nature or
role in an ecosystem and which could be easily disturbed or degraded by human activities
and developments. ( 30107.5.)
44

to serve some other environmental or economic interest recognized by the act. (Bolsa
Chica, supra, 71 Cal.App.4th at p. 499.)
Here, we have determined that the Coastal Commission did not err in determining
pursuant to section 30260 that the test slant well may be located in an environmentally
sensitive habitat area because it is a coastal-dependent industrial facility.
5. Analysis of Hydrologic Impacts
Marina Coast contends that the Coastal Commission violated CEQA because its
staff report failed to evaluate the test slant wells potential hydrological impacts to the
Salinas Valley Groundwater Basin. As we have previously noted, the Coastal
Commission may use a program-generated written report in lieu of an EIR that describes
the mitigation measures for a projects environmental impacts. (San Joaquin River,
supra, 183 Cal.App.4th at pp. 1125-1126.)
According to Marina Coast, the Coastal Commissions staff report failed to
consider or analyze Marina Coasts concern that the test slant well will endanger[] the
[Salinas Valley Groundwater Basins] water supply and quality to the detriment of area
residents dependent on that supply. Cal-Am responds that to the contrary, the staff
report concluded on the basis of substantial evidence that the Salinas Valley Groundwater
Basin is severely contaminated by seawater intrusion extending several miles inland,
and therefore the [test slant well] will not significantly affect groundwater supply and
quality.
The Coastal Commissions staff report states: The test slant well would remove
up to about 3.6 million gallons per day of primarily seawater from a sub-seafloor
extension of the 180-Foot Aquifer of the Salinas Valley Groundwater Basin. Further,
the staff report states that the amount of water that would be withdrawn for the test slant
well project represents only about 0.1 percent of the [Salinas Valley Groundwater] SubBasins groundwater storage. In addition, the staff report states: Cal-Am has modeled
the expected cone of depressionthat is, the area in which groundwater levels are
45

lowered due to this water withdrawalto extend to about 2,500 feet from the well, where
the drawdown is expected to be about four inches.
Regarding mitigation measures, the staff report notes that the [Coastal]
Commission imposes Special Condition 11, which requires Cal-Am to conduct
monitoring during all pumping activities and to record all drawdown levels and changes
in salinity in those nearby inland wells. Special Condition 11 also requires that Cal-Am
cease its pump tests if monitoring shows a drawdown of one foot or more or shows an
increase of more than two parts per thousand of salinity. Further, the staff report
concludes that [t]he test well is therefore designed and conditioned to ensure that it will
have no significant adverse environmental effect on water quantity or quality in the area
surrounding the test project.
Based on the administrative record, we therefore find no merit in Marina Coasts
contention that the Coastal Commission failed to consider the impacts of the test slant
well on the Salinas Valley Groundwater Basin.
6. Adequate Baselines
Marina Coast contends that the Coastal Commission violated CEQA by failing to
provide any meaningful baseline information regarding hydrologic conditions beyond
the historic level of sea-water intrusion. According to Marina Coast, there is simply no
basis for the public or the Commissioners to evaluate the [test slant wells] potential
impacts to groundwater supplies and water quality.
Cal-Am responds that substantial evidence supports the Coastal Commissions
finding of baselines for hydrological conditions, including baselines for seawater
intrusion in the aquifers, water levels, and salinity levels.
The California Supreme Court has instructed that [t]he fundamental goal of an
EIR is to inform decision makers and the public of any significant adverse effects a
project is likely to have on the physical environment. ( 21061; [Citation.] To make such
an assessment, an EIR must delineate environmental conditions prevailing absent the
46

project, defining a baseline against which predicted effects can be described and
quantified. [Citation.] (Neighbors for Smart Rail v. Exposition Metro Line Const.
Authority (2013) 57 Cal.4th 439, 447.)
Neither CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for
determination of the existing conditions baseline. Rather, an agency enjoys the discretion
to decide, in the first instance, exactly how the existing physical conditions without the
project can most realistically be measured, subject to review, as with all CEQA factual
determinations, for support by substantial evidence. [Citation.] (Communities For A
Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310,
328 (Communities For A Better Environment).)
Our review of the administrative record shows that the staff report and its
supporting documents included information about the existing conditions of groundwater
supplies and water quality. Regarding the Salinas Valley Groundwater Basin, the staff
report states that [s]eawater intrusion has been estimated to occur at a baseline rate of
about 10,000 acre-feet (equal to about three billion gallons) per year, though the
groundwater management programs are attempting to significantly reduce this rate. [Fn.
omitted.]
Additionally, the staff report states that, as to the Dune Sand Aquifer and the 180Foot Aquifer, water quality data collected from nearby areas over the past several years
show that both aquifers exhibit relatively high salinity levels . . . . As to groundwater
supplies, the staff report states that the total water withdrawal for the test well would be
no more than just over 4,000 acre-feet per year over the two-year test period [which] . . .
represents only about 0.1 percent of the Sub-Basins groundwater storage.
Moreover, Special Condition 11 requires Cal-Am to install monitoring devices in
at least four wells on the CEMEX site, plus one or more offsite wells, in order to provide
the baseline water and Total Dissolved Solids (TDS) levels in those wells prior to
commencement of pumping from the test well. Marina Coast has not shown that the
47

Coastal Commissions exercise of its discretion in determining that these baselines could
be most realistically measured by installing monitoring wells is not supported by
substantial evidence. (See Communities For A Better Environment, supra, 48 Cal.4th at
p. 328.)
We are therefore not persuaded by Marina Coasts contention that the Coastal
Commission violated CEQA by failing to provide any meaningful baseline information
regarding hydrologic conditions beyond the historic level of sea-water intrusion.
7. Analysis of Alternatives
Marina Coast contends that the Coastal Commission violated CEQA by failing to
provide an adequate analysis of alternatives to the test slant well, including a failure to
analyze a no project alternative.
This court has stated that CEQA establishes no categorical legal imperative as
to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its
facts, which in turn must be reviewed in light of the statutory purpose. [Citation.] An
EIR shall describe a range of reasonable alternatives to the project, or to the location of
the project, which would feasibly attain most of the basic objectives of the project but
would avoid or substantially lessen any of the significant effects of the project, and
evaluate the comparative merits of the alternatives. An EIR need not consider every
conceivable alternative to a project. Rather it must consider a reasonable range of
potentially feasible alternatives that will foster informed decisionmaking and public
participation. An EIR is not required to consider alternatives which are infeasible. The
lead agency is responsible for selecting a range of project alternatives for examination
and must publicly disclose its reasoning for selecting those alternatives. There is no
ironclad rule governing the nature or scope of the alternatives to be discussed other than
the rule of reason. (CEQA Guidelines, 15126.6, subd. (a).) (Watsonville Pilots Assn.
v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1086 (Watsonville Pilots).)

48

[I]t is appellants burden to demonstrate that the alternatives analysis is


deficient. (California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 987.) As with the range of alternatives that must be discussed, the
level of analysis is subject to a rule of reason. (Laurel Heights I, supra, 47 Cal.3d at p.
407.) In other words, [t]here is no need for the EIR to consider an alternative whose
effect cannot be reasonably ascertained and whose implementation is deemed remote and
speculative [citations]. Absolute perfection is not required; what is required is the
production of information sufficient to permit a reasonable choice of alternatives so far as
environmental aspects are concerned. It is only required that the officials and agencies
make an objective, good-faith effort to comply. (Foundation for San Franciscos
Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893,
910 (Foundation).) To that end, an EIRs discussion of alternatives must be reasonably
detailed, but not exhaustive. [Citation]; Guidelines, 15126.6.) The key issue is whether
the alternatives discussion encourages informed decisionmaking and public participation.
[Citation.] (California Oak Foundation, supra, 188 Cal.App.4th at p. 276.)
Here, the staff report includes an Assessment of Alternatives section that notes
Cal-Ams recognition of the states preference for using subsurface intakes, where
feasible, to provide source water for its proposed desalination facility. Those types of
intakes are generally less environmentally damaging than intakes that draw directly from
the water column. Consideration of potential alternative locations for this project has
therefore been focused on sites within the Monterey Bay region where geologic and
hydrogeologic characteristics are likely to lend themselves to subsurface intake
methods.
The feasible sites for the test slant well discussed in the staff report included the
CEMEX site and a site about eight miles further north near Moss Landing that might
also be suitable for subsurface intakes. The alternative Moss Landing site had been

49

previously dismissed due to its distance from the Cal-Am service area and its additional
adverse impacts.
Another alternative site that was considered was located in the northern end of the
CEMEX site. The staff report states that consultation with state and federal wildlife
agencies and others showed that locating the test well there would have more significant
potential impacts to nearby nesting Western snowy plovers, which are listed as federallyendangered. That site was also closer to the shoreline than the current site, and would
have involved more excavation, required shoreline protective devices, and been subject to
more erosion and associated coastal hazards. The focus then shifted to the current site at
the south end of the CEMEX facility, which is within an already disturbed area, is further
from the shoreline, and involves fewer coastal resource impacts.
We determine that the level of Coastal Commissions alternatives analysis satisfies
the rule of reason and is adequate under CEQA, since the analysis of alternative sites for
a subsurface water intake (1) disclosed the reasons for selecting the alternative sites
(Watsonville Pilots, supra, 183 Cal.App.4th at p. 1086); (2) the information produced
was sufficient to permit a reasonable choice of alternatives with regard to the
environmental aspects of subsurface water intake (Foundation, supra, 106 Cal.App.3d at
p. 910); and (3) encouraged informed decision-making and public participation
(California Oak Foundation, supra, 188 Cal.App.4th at p. 276).
We also determine that the Coastal Commission adequately discussed a no
project alternative. The purpose of the No Project alternative is to allow
decisionmakers to compare the impacts of approving the proposed project with the
impacts of not approving the proposed project. ([CEQA Guidelines], 15126.6, subd.
(e)(1).) CEQA requires the No Project alternative to discuss the existing conditions
at the time the notice of preparation is published . . . as well as what would be reasonably
expected to occur in the foreseeable future if the project were not approved, based on
current plans and consistent with available infrastructure and community services.
50

([Citations]; 15126.6, subd. (e)(2).) (Bay Area Citizens v. Assn. of Bay Area
Governments (2016) 248 Cal.App.4th 966, 1015.)
The Coastal Commissions staff report includes a No Action Alternative
section, which states: For at least two reasons, the no action alternative is also likely
to result in greater adverse environmental impacts than the currently proposed project.
The two reasons were a delay in obtaining the information needed from the test slant
well, which would prevent Cal-Am from obtaining the information needed for review of
the potential desalination facility project, and a further delay in the review of that project.
The staff report also stated: Either of these options could extend the period of Cal-Ams
excessive withdrawals from the Carmel River, thereby exacerbating the ongoing adverse
effects of those withdrawals on fish and habitat in that watershed. Another
environmental consequence of the no project alternative discussed in the staff report
was the potential development of a desalination facility in Monterey Bay that would use
open water intakes, which was expected to have greater adverse effects on marine life
and coastal waters.
Accordingly, we find no merit in Marina Coasts contention that the Coastal
Commission violated CEQA by failing to provide an adequate alternatives analysis in its
staff report.
8. Recirculation of Staff Report
Marina Coast argues that the Coastal Commission is required by CEQA to
recirculate the staff report. According to Marina Coast, the Staff Report was
substantially modified the night before project approval to fundamentally alter the project
description, the mitigation, and the disclosure of feasible alternatives . . . . The eleventhhour changes deprived the public of any opportunity to comment on the environmental
impacts of the actual project approved.
Cal-Am disagrees, asserting that the Coastal Commission is not bound by CEQAs
EIR recirculation provisions because the Commissions own regulations include
51

provisions governing the recirculation of a staff report. Cal-Am argues that since the
Coastal Commissions action on Cal-Ams coastal development permit was not
substantially different than the action recommended in the staff report, recirculation is not
required under the Commissions regulations. Alternatively, Cal-Am argues that
recirculation was not required under CEQA because the addenda to the staff report did
not include significant new information.
We need not determine whether the Coastal Commissions regulations governing
recirculation of a revised staff report (Regs., 13096)20 apply in this case, since we
determine that recirculation of the Coastal Commissions staff report was not required
under the CEQA provisions governing recirculation of an EIR.
Section 21092.1[21] provides that when a lead agency adds significant new
information to an EIR after completion of consultation with other agencies and the
public (see 21104, 21153) but before certifying the EIR, the lead agency must pursue

20

Unless otherwise specified at the time of the vote, an action taken consistent
with the staff recommendation shall be deemed to have been taken on the basis of, and to
have adopted, the reasons, findings and conclusions set forth in the staff report as
modified by staff at the hearing. If the commission action is substantially different than
that recommended in the staff report, the prevailing commissioners shall state the basis
for their action in sufficient detail to allow staff to prepare a revised staff report with
proposed revised findings that reflect the action of the commission. Such report shall
contain the names of commissioners entitled to vote pursuant to Public Resources Code
section 30315.1. (Regs., 13096, subd. (b).)
21

Section 21092.1 provides: When significant new information is added to an


environmental impact report after notice has been given pursuant to Section 21092 and
consultation has occurred pursuant to Sections 21104 and 21153, but prior to
certification, the public agency shall give notice again pursuant to Section 21092, and
consult again pursuant to Sections 21104 and 21153 before certifying the environmental
impact report.
52

an additional round of consultation. (Vineyard, supra, 40 Cal.4th at p. 447; see also


CEQA Guidelines, 15088.5.)22
The California Supreme Court has further instructed that the addition of new
information to an EIR after the close of the public comment period is not significant
unless the EIR is changed in a way that deprives the public of a meaningful opportunity
to comment upon a substantial adverse environmental effect of the project or a feasible
way to mitigate or avoid such an effect (including a feasible project alternative) that the
projects proponents have declined to implement. [Citation.] [R]ecirculation is not
required where the new information added to the EIR merely clarifies or amplifies
[citations] or makes insignificant modifications in [citation] an adequate EIR.
[Citation.] (Laurel Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112, 11291130 (Laurel Heights II).)

22

CEQA Guidelines, 15088.5, subds. (a), (b) provide: A lead agency is


required to recirculate an EIR when significant new information is added to the EIR after
public notice is given of the availability of the draft EIR for public review under Section
15087 but before certification. As used in this section, the term information can include
changes in the project or environmental setting as well as additional data or other
information. New information added to an EIR is not significant unless the EIR is
changed in a way that deprives the public of a meaningful opportunity to comment upon
a substantial adverse environmental effect of the project or a feasible way to mitigate or
avoid such an effect (including a feasible project alternative) that the projects proponents
have declined to implement. Significant new information requiring recirculation
include, for example, a disclosure showing that: [] (1) A new significant environmental
impact would result from the project or from a new mitigation measure proposed to be
implemented. [] (2) A substantial increase in the severity of an environmental impact
would result unless mitigation measures are adopted that reduce the impact to a level of
insignificance. [] (3) A feasible project alternative or mitigation measure considerably
different from others previously analyzed would clearly lessen the significant
environmental impacts of the project, but the projects proponents decline to adopt it. []
(4) The draft EIR was so fundamentally and basically inadequate and conclusory in
nature that meaningful public review and comment were precluded. [Citation.] []
Recirculation is not required where the new information added to the EIR merely clarifies
or amplifies or makes insignificant modifications in an adequate EIR.
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On the other hand, recirculation is required, for example, when the new
information added to an EIR discloses: (1) a new substantial environmental impact
resulting from the project or from a new mitigation measure proposed to be implemented
(cf. Guidelines, 15162, subd. (a)(1), (3)(B)(1)); (2) a substantial increase in the severity
of an environmental impact unless mitigation measures are adopted that reduce the
impact to a level of insignificance (cf. Guidelines, 15162, subd. (a)(3)(B)(2)); (3) a
feasible project alternative or mitigation measure that clearly would lessen the
environmental impacts of the project, but which the projects proponents decline to adopt
(cf. Guidelines, 15162, subd. (a)(3)(B)(3), (4)); or (4) that the draft EIR was so
fundamentally and basically inadequate and conclusory in nature that public comment on
the draft was in effect meaningless [citation]. (Laurel Heights II, supra, 6 Cal.4th at p.
1130.)
[T]he lead agencys determination that a newly disclosed impact is not
significant so as to warrant recirculation is reviewed only for support by substantial
evidence. [Citation.] (Vineyard, supra, 40 Cal.4th at p. 447.) [I]n applying the
substantial evidence standard, the reviewing court must resolve reasonable doubts in
favor of the administrative finding and decision. [Citations.] (Laurel Heights II,
supra, 6 Cal.4th at p. 1135.) Thus, the appellant bears the burden of proving substantial
evidence does not support the agencys decision not to recirculate an EIR. [Citation.]
(San Francisco Baykeeper, Inc. v. California State Lands Commission (2015) 242
Cal.App.4th 202, 224 (San Francisco Baykeeper).)
Marina Coast makes a general argument in its opening brief that recirculation of
the Coastal Commissions staff report is required under CEQA because the staff report
was substantially modified the night before project approval to fundamentally alter the
project description, the mitigation, and the disclosure of feasible alternatives. Since
Marina Coast did not specify any of the modifications, we determine that Marina Coasts
argument in its opening brief is insufficient to meet its burden to prove that substantial
54

evidence does not support the Coastal Commissions implicit decision not to recirculate
the staff report because the new information in the addenda was not significant. (See San
Francisco Baykeeper, supra, 242 Cal.App.4th at p. 224.)
In its reply brief Marina Coast argues more specifically that recirculation was
required under CEQA because the addenda to the staff report included (1) the new
environmental impact of allowing construction of the test slant well to continue into the
snowy plover nesting season; and (2) the Coastal Commissions rejection of an
alternative site at Potrero Road that was not discussed in the staff report.
It is axiomatic that arguments made for the first time in a reply brief will not be
entertained because of the unfairness to the other party. [Citations.] (May v. City of
Milpitas (2013) 217 Cal.App.4th 1307, 1333, fn. 11.) We will disregard Marina Coasts
argument that the newly disclosed environmental impact of continuing construction into
the snowy plover nesting season warrants recirculation of the staff report, since that
argument was made for the first time in Marina Coasts reply brief. However, because
Cal-Am discusses the newly disclosed Potrero Road alternative site in its respondents
brief, we will determine whether recirculation of the staff report is required under CEQA
on that ground.
Addendum 1 added the following new information to the staff reports discussion
of alternative sites: The recent investigation included a single borehole at a site on
Potrero Road, near Moss Landing. Data from that borehole identified the site as likely
suitable for a slant well. Compared to the CEMEX site, the Potrero Road site presented
higher hydraulic conductivity values but less available aquifer depth and a wider range of
water quality in the underlying aquifer. The Potrero Road site is also within a parking lot
used for public access to the Salinas River State Beach, and conducting test well
construction and operation at this site would result in higher adverse effects on public
access and recreation compared to the CEMEX site. The Potrero Road site is also closer
to the Salinas River National Wildlife Refuge, which, along with the Salinas River State
55

Beach, provides important habitat areas for the Western snowy plover and the Caspian
tern, which could be adversely affected by well-related construction and operations.
(Underscoring omitted.)
Thus, the administrative record reflects that the new information about the Potrero
Road site was not significant new information (Vineyard, supra, 40 Cal.4th at p. 447)
that would require recirculation of the staff report, since it appears that the Potrero Road
site would not lessen the environmental impacts of the test slant well project. (See Laurel
Heights II, supra, 6 Cal.4th at pp. 11291130.) Marina Coast fails to make a contrary
showing that substantial evidence does not support the Coastal Commissions
determination that the newly disclosed alternative site was not significant information
warranting recirculation. (See Laurel Heights II, supra, 6 Cal.4th at pp. 11291130; San
Francisco Baykeeper, supra, 242 Cal.App.4th at p. 224.)
V. CONCLUSION
Under the applicable standards of review, we have determined that the Coastal
Commission had jurisdiction to hear Cal-Ams appeal of the Citys denial of Cal-Ams
application for a coastal development permit for the test slant well, since the City
Councils denial of the application was a final action and there was a substantial issue as
to conformity with the Citys LCP. We have also determined that Marina Coast failed to
show that the Coastal Commission violated CEQA in approving Cal-Ams coastal
development permit for the test slant well. We will therefore affirm the trial courts
August 24, 2015 judgment, which denied Marina Coasts petition for a writ of mandate
challenging the Coastal Commissions decision.
VI. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent and real
party in interest.

56

___________________________________________
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________
ELIA, ACTING P.J.

__________________________
MIHARA, J.

Marina Coast Water District v. California Coastal Commission


H042742